The Attorney General v. Auyeung Kwan

CAAR000008/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 7 OF 1975

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APPLICATION FOR REVIEW NO. 8 OF 1975

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 30th April, 1975.

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DECISION

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1. These two applications for review were heard together. Each of the respondents pleaded guilty to a single charge of conspiracy. The respondent, TSANG Wing was sentenced to one year's imprisonment, which was suspended for one year, and the respondent, AUYEUNG Kwan, was sentenced to one year's imprisonment to take effect immediately.

2. In 1971 one N.E. Temple was the Superintendent-in-Charge of the Yaumati Divisional Police Station. At that time the respondent TSANG Wing was Station Sergeant in the Uniform Branch at that police station. The respondent AUYEUNG Kwan was also stationed at the Yaumati Divisional Police Station where he held the rank of Detective Station Sergeant on trial. An arrangement was made between Mr. Temple and the two respondents whereby the two respondents collected "squeeze" money from various sex establishments such as girlie bars, bathrooms, brothels etc., and also from illegal gambling establishments and off-course greyhound and horse-racing betting stalls. The actual collections were done by "runners" who handed money over to the respondents at regular intervals. On each occasion when this was done the respondents paid Mr. Temple a percentage of the money received.

3. The respondent TSANG Wing retired from the Hong Kong Police Force in May 1972 after some 32 years' service. The respondent AUYEUNG Kwan retired from the Force in August 1973 after some 24 years' service.

4. In September 1974 certain inquiries were made by the Independent Commission against Corruption as to the standard of living maintained by Mr. Temple. It was thought that he may have been committing an offence under section 10(1)(a) of the Prevention of Bribery Ordinance. After these inquiries had been started, Mr. Temple made a full disclosure of his affairs and stated that he had £80,000 sterling of corrupt money in his possession. This was money which had been paid to him while he was the Divisional Superintendent of Yaumati Police Station in 1971/72. He pleaded guilty to an offence under section 10(1)(b) of the Prevention of Bribery Ordinance on February 14th, 1975 and was sentenced to a period of twelve months' imprisonment. He had already arranged for the sum of £80,000 sterling to be Paid to the Crown. As a result of that confession the facts on which these applications for review are based came to light.

5. As we have said, each of the respondents pleaded guilty to an offence of conspiracy to obstruct the course of public justice. The case for the Crown is that the sentence on each of the respondents of one year's imprisonment is manifestly inadequate. In addition, it is the Crown's case that the suspension of the sentence of one year in the case of the respondent TSANG Wing is wrong in princple. We agree with these submissions. We think that the sentence in each case is manifestly inadequate and we think that to suspend a sentence in a case of this nature is wrong in principle.

6. For the respondents, great reliance was placed on the sentence of one year's imprisonment passed in the case of Temple. We agree with Mr. Yu, who appeared for the respondents, that that case and the present cases may be considered, for all practical purposes, indistinguishable.

7. The Attorney General did not think it right to apply for a review of the sentence in the case of Temple, for reasons which seemed to him to be proper. But the fact that he did not apply for a review does not necessarily mean that he accepted that the sentence of one year passed by the trial judge was an adequate sentence. We, and we say this emphatically, do not accept that that sentence was a proper sentence; indeed, on the information before us, we think that it was manifestly inadequate.

8. We will allow these applications and we will substitute for the sentences passed by the trial judge in each case a sentence of three years' imprisonment and we would remark that we do not pass a greater sentence only because these are review proceedings. We regret that in the result a more senior officer who received the lion's share of the booty escapes more lightly than his junior colleagues. But the case of Temple is not before us.

Representation: